JUDGMENT Anjani Kumar, J.
1. By means of present writ petition under Article 226 of the Constitution of India, the petitioner-tenant challenges order dated 4th May, 1987, passed by the Appellate Authority, copy whereof is annexed as Annexure-'5' to the writ petition, whereby the appeal filed by the landlord-contesting respondent against the order passed by the prescribed authority was allowed by which the application filed by the landlord under Section 21 (1) (a) of U.P. Act No. 13 of 1972, was rejected by the prescribed authority.
2. In short, the facts of the present case are that the contesting respondent-landlord, who died during the pendency of this writ petition, filed an application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972. In short the 'Act', to the effect that the respondent No. 2 is the landlord and petitioner is the tenant of the accommodation in question, which is a shop. It is asserted that the aforesaid shop may be released in favour of the landlord, as the landlord bonafide requires the same for starting business of Parchoon for which he has sufficient financial resources. It is further asserted that the landlord, who retired from the service of Air Force in the year 1972, stayed at Delhi and in the year 1978 he decided that because of the age, it might not be possible for him to adhered the strict working norm in the service at Delhi, therefore, the landlord must start his Parchoon business in the shop in question and for that purposes, the release application was filed that shop in question be released in favour of the landlord, as the need of the landlord is bonafide. As far as the comparative hardship is concerned, it is asserted by the landlord that since he has no source of income and it is difficult for him to meet his living in meager pension that he gets from the Air Force from where he retired, therefore, the need of the landlord is comparatively more pressing than the need of the tenant-petitioner. The petitioner-tenant contested the aforesaid application inter alia on the ground that the landlord himself has come out with the case that because of the age he is not in position to follow strict duty hours of the service itself demonstrates that the landlord is physically not in a position to run the business of Parchoon, as asserted by him. It is further stated by the petitioner-tenant that further the landlord is in the employment in private firm at Delhi, where he lives with his son, who is employed at Delhi. On this contention, it has been alleged by the petitioner-tenant that the need of the landlord cannot be said to be bonafide and on the comparative hardship, it is stated by the tenant that he is carrying on business in the shop in question and if he is to vacate the shop, his business will be ruined, thus the tilt of the comparative hardship is in favour of the tenant. Lastly, it is asserted by the the tenant that the accommodation in question i.e. house No. 440 is a shop, which is vacant and is in possession of the landlord from where he can start his proposed business of Parchoon and in the alternative it is asserted that in case the tenant is evicted from the shop in question, he is willing and ready to shift his business in shop No. 440, referred to above.
3. The prescribed authority vide its order dated 7th June, 1982 dismissed the application filed by the landlord, copy whereof is annexed as Annexure-'4' to the writ petition. Aggrieved by the aforesaid order passed by the prescribed authority, the landlord filed an appeal under Section 22 of the Act, which as stated above, has been allowed by the appellate Court, which is impugned in the present writ petition.
4. Before the appellate Court, the landlord-respondent repeated the respective arguments, which were advanced before the prescribed authority. The landlord has stated that the shop in question is only shop where he can start his business. The further suggestion of the tenant that shop No. 440 may be allotted to him in case he is evicted from shop No. 441, which is not shop in dispute, cannot be accepted because its map has been approved by the local body and there is no shop numbered as 440, as alleged by the tenant. The space as pointed out by the tenant is in fact, a Baithak and since the aforesaid Baithak cannot be used for running a business, therefore, suggestion of the tenant-petitioner cannot be accepted. On the question of bonafide need, the findings of the prescribed authority were challenged on the ground that this is the settled law that it is choice of the landlord for release of the accommodation when he decides to run a business, he cannot be forced to continue in service or cannot be forced to live otherwise. It is also challenged before the appellate authority that the findings of the Prescribed Authority that since none of the grounds taken that the landlord has also retired from the Air Force service and further that he resides at Delhi after retirement from service, would be assertion that because of the age, he cannot adhered of the strict duty hours in service, therefore, he requires the shop in dispute to run Parchoon business, cannot be accepted, suffer from the manifest error of law, inasmuch as the same is based on misreading of the material on record. The landlord has come out with the case that he requires the shop in dispute to start the business of Parchoon where he can run a shop at his discretion (landlord's discretion), which is suitable of his age and to earn further income from the business for living as stated by the landlord that the income from pension is too small for him to meet its need. Thus, the finding arrived at by the prescribed authority regarding bonafide requirement of the landlord deserves to be set aside. The Appellate Authority after considering the arguments advanced on behalf of the tenant recorded a finding that the order of the prescribed authority on the question of bonafide requirement of the landlord deserves to be reversed and therefore, the appellate Authority reversed the same and recorded a finding that the need of the landlord is bonafide. On the question of comparative hardship, the appellate authority has recorded finding in favour of the landlord and observed that the tilt of the hardship is in favour of the landlord. On the question of suggestion regarding shop No. 441 is concerned, a finding has been recorded by the Appellate Authority that the space pointed out by the tenant as shop No. 440 is in fact a Baithak, which has been shown in the approved map of the building, which has approved by the local body Commissioner. In this circumstance, the contention of tenant that he is willing to shift his business in shop No. 441 in case the shop in question is released, cannot be accepted. Before this Court, it is argued that there is nothing on record that after the filing of the application under Section 21 (1) (a) of the Act by the landlord, tenant has made any effort to find out an alternative accommodation for shifting his business.
5. Learned Counsel appearing on behalf of the landlord-contesting respondent has further relied upon a decision of this Court reported in 1984 (1) ARC 113, N.S. Datta and Ors. v. The VIIth Additional District Judge, Allahabad and Ors.. Paragraph 26 of the aforesaid judgment relied upon by the learned Counsel for the landlord is reproduced below:-
"26. Though not decisive this too is relevant in the context of Sub-clauses (a) and (c) Rule 16 (2) the application whereof necessarily depends on the facts and circumstances of each case. Sub-clause (d) is not rendered nugatory by Sub-clauses (a) or (c) vide Smt. Chandrawati v. VIth Additional District Judge, Saharanpur, 1978 ARC 418. In deciding this aspect of the matter, held the Supreme Court in Mt. Bega Begum and Ors., (1979) 1 SCC 273 (supra), "each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on the plaintiffs to prove that lesser disadvantages will be suffered by the dependants and that they were remediable." Sri Dayal made a feeble attempt to distinguish that case urging that in Section 11 (1) (h) of the Jammu and Kashmir Rent Control Act there is the word "Explanation" while Section 21 (1) of the U.P. Act, 1972 uses the expression "Proviso" and that as a general rule as observed in Shah Bhojraj Kuverji Oil Mills and Ginning Factory, AIR 1961 SC 1596 and the Commissioner of Income-tax etc. v. The Indo-Mercantile Bank Ltd., AIR 1959 SC 713, a proviso is added to an enactment to qualify or create an exception to what is in the enactment while an Explanation elucidates what is contained in the main provision. I am not impressed with this contention. Suffice it may be say that in the context of the relevant provisions the distinction attempted is without a difference. It is not the nomenclature or the label put upon it but the substance that matters. The proviso to Section 21 (1) as also the Explanation to Section 11 (1) (h) of the other Act (quoted above) require as mandatory regard being bad to the advantages or disadvantages on either side in the event of the application being allowed or otherwise. "To put this, in other words, therefore, there is no difference in substance due to the provision in our Act being designated as a 'proviso' instead of an 'explanationl. The provision is in 'pari material' and that has also been the consistent view of this Court. (See : Sanwal Das Banka v. IIIrd Additional District Judge, Faizabad, 1982 (1) ARC 594. In Central Tobacco Co. v. Chandra Prakash an unreported decision of the Supreme Court of 1969, which has been followed in Bega Begum (supra) and again in Phiroze Bamanji Desai v. Chandrakant N. Patel, (1974) 1 SCC 661, it was held that each party must adduce evidence to show that hardship could be caused to him by the granting or refusal of the decree and that the tenant must also adduce evidence to the effect that other reasonable accommodation was not available to him. The view taken in Bega Begum (supra) has been followed in Kewal Singh v. Lajwanti, (1980) 1 SCC 290. The Court is entitled also to take into account the fact that the tenant has neither alleged, nor proved to have made effort to have an alternative accommodation. Nur Nahi v. IIIrd Additional District Judge, Saharanpur and Ors., 1983 (1) ARC 412; Sanwal Das Binka, 1982 (1) ARC 24 (supra). Moreover, the nonavailability of alternative accommodation to the tenant is in itself not the adequate ground to reject the landlord's application vide Kamil Khan v. IIIrd Additional District Judge, Bareilly and Ors., 1982 (1) ARC 783. In Suraj Prasad Sharma v. IInd Additional District Judge, Mirzapur and Ors., (1983) Alld. C.J., 432 : 1983 (1) ARC 427, brother M.N. Shukla, J. observed:-
"It is common place fact that invariably when an application under Section 21 of the Act is allowed, the tenant has to quite and this involves discomfort but if this alone were sufficient to non-suit the landlord, no application for release could ever be allowed. Judging comparative hardships' is a matter of deeper import had it would be a lopsided order which dismisses a landlord's application for release merely with the plaintiffs dinous observation that the tenant would be "thrown on the street". The physical dispossession of the tenant is the necessary concomitment of every release application of the landlord, which is allowed. However, well-founded the application may be an element of inconvenience or discomfort is inherent in the very process of vacating an accommodation. A release application cannot be thrown out merely with the bald observation that the tenant would suffer greater hardship."
6. In this view of the matter and in view of the law laid down by this Court, the writ petition filed by the tenant petitioner deserves to be dismissed. On the question of hardship and bonafide requirement learned Counsel appearing on behalf of the petitioner-tenant tries to assail the findings by referring to one statement here and other statement there. Even assuming as averred by learned Counsel for the petitioner-tenant that there may be some variance of the statement are on record, thus this cannot constitute the error so as to warrant any interference by this Court in exercise of power under Article 226 of the Constitution of India, as held by the Apex Court in the case reported in, 2003 (2) ARC 385: (2003) 6 Supreme Court Cases, 675 Surya Dev Rai v. Ram Chander Rai and Ors., which has been relied upon by learned Counsel appearing on behalf of the landlord-respondent. The Apex Court has held in Para 38, Sub-para (8) of the aforesaid judgment, which is reproduced below:-
"38. Such like matters frequently arise before the High Courts. We sum up our conclusion in a nut shell, even at the risk of repetition and state the same as hereunder:
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character."
7. In view of the aforesaid law laid down by the Apex Court I do not find that the judgment impugned in the present writ petition suffers from any such error which may warrant interference by this Court under Article 226 of the Constitution of India. This writ petitioner, therefore, has no force and is accordingly dismissed.